Tag Archives: Antonin Scalia

ByDAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

The Wall Street Journal, Jan. 31, 2017

Judge Neil Gorsuch, President Trump ’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect.

These are not stylistic flourishes, but central to how Judge Gorsuch views the judicial role. “In our legal order,” he has written, “judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be.” When a judge understands that he has no authority to legislate from the bench, cases that might otherwise be hard become straightforward exercises in applying law to facts.

Thus, Judge Gorsuch could recognize the “tragic circumstances” of a family whose daughter had died in a rafting accident, while still holding that the liability release she had signed was legally binding. That Colorado allows people to assume such risks, he explained, was a choice for the state’s General Assembly, not the court.

In a similar dissent, Judge Gorsuch argued for allowing a seventh-grader who was arrested for horseplay in gym class to sue the police officers, reasoning that no New Mexico statute authorized the arrest. And he has vigorously enforced rights of religious exercise under statutes like the Religious Freedom Restoration Act, deferring to Congress’s decision to vindicate, as he put it, “this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed. In a memorial lecture last year, Judge Gorsuch said that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” Textualism, he added, serves to “confine the range of possible outcomes and provide a remarkably stable and predictable set of rules people are able to follow.” On the other hand, attempting to divine legislative intent, as he wrote in one opinion, is a “notoriously doubtful business.” Another opinion decried the judicial “conjuring” that substitutes the court’s view of optimal policy for Congress’s.

In an influential 2015 decision, Judge Gorsuch excavated the meaning of a law increasing penalties on anyone who “uses” a gun “during and in relation to” a drug offense. He carefully employed “plain old grade school grammar”—including a sentence diagram.

Judge Gorsuch’s textualism extends to the Constitution, quite emphatically: “That document,” he wrote, “isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.

What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.

The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.

Messrs. Rivkin and Grossman practice appellate and constitutional law with Baker & Hostetler in Washington.

“I’m Scalia.” That’s how Justice Antonin Scalia began to question a nervous lawyer, who was mixing up the names of the nine Supreme Court justices during oral arguments on the controversial 2000 case Bush vs. Gore. His introduction should have been unnecessary, because if any justice dominated the contemporary Supreme Court stage, it was Scalia.

By turns combative, argumentative and thoughtful, Scalia was a stout conservative who transformed American jurisprudence in 34 years on the bench. He was also charming, witty and cordial, able to maintain a close friendship with Justice Ruth Bader Ginsburg, perhaps his leading intellectual rival on the Supreme Court’s left wing.

Appointed to the federal appeals court in Washington, D.C., by President Reagan in 1982, Scalia was elevated by Reagan to the Supreme Court in 1986. Scalia was, first and foremost, an “Originalist” — the title of a popular play about the justice that premiered last year in the capital. Scalia was not the first to argue that the Constitution must be applied based on the original meaning of its words — that is, the general, public meaning those words had when that document was drafted, rather than any assumed or secret intent of its framers. He did, however, supply much of the intellectual power behind the movement to reestablish the primacy of the Constitution’s actual text in judging.

With Scalia on the bench, academics, lawyers and jurists left, right and center were forced to confront originalist theory, which many had previously dismissed as hopelessly simplistic.

If there was one predominant thread running through Scalia’s cases it was a determination, consistent with his originalism, to limit the unelected judiciary’s power to the exercise of “merely judgment,” as characterized by Alexander Hamilton in a Federalist Papers passage that Scalia loved to quote. His view of the proper judicial role was driven by his belief that the Constitution assigned judges a modest part to play, both as to the types of issues they could resolve and the instances in which they could overturn choices made by elected officials.

Although the Constitution took disposition of some issues off the political table, Scalia understood that it nevertheless established a republic where on most matters the majority would rule. Individual liberty, he believed, was protected not only by specific guarantees in the Bill of Rights, but also by the system of checks and balances—limitations on the authority vested in government and the structural separation of powers among the three federal branches, as well as between the federal government and the states.

Indeed, Justice Scalia did as much or more to limit the scope of judicial power than any of his predecessors, particularly with respect to “standing” (who might have a sufficient case or controversy to litigate in federal courts), and his insistence that judges could enforce the law only as written, which could never be trumped by personal policy preferences.

It should come as no surprise that Scalia was not a great coalition builder or deal maker, joining only those majority opinions consistent with his guiding principles and dissenting in all other instances. For him, politicking and judging were simply incompatible.

He bristled at the idea that judges were the custodians of a “living Constitution” whose meaning they could change in accordance with “evolving standards.” As Scalia wrote dissenting from the court’s 2005 death penalty decision in Roper vs. Simmons: “On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?”

Few justices could turn a phrase like Scalia, a talented writer. In one famous example, dissenting from a 1988 opinion upholding the now-defunct Independent Counsel Act, Scalia defended presidential power to control executive branch appointees by noting that “frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing…. But this wolf comes as a wolf.”

His pen could also be sharp. Recently, for example, in response to the majority opinion upholding a constitutional right to same-sex marriage, Scalia excoriated his colleagues: “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” Love him or hate him, agree or disagree, no one can say that Scalia ever pulled a punch.

Scalia’s ultimate impact on American law will continue to unfold for decades to come, but one thing is certain. Before he joined the Supreme Court, judicial opinions could resolve constitutional issues with little discussion of that document’s original meaning. Today, jurists must at least confront it, even if they then resolve the issues based on the Constitution’s supposed living character. That is Scalia’s achievement, and it is no small thing.

David B. Rivkin Jr. and Lee A. Casey are constitutional lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.

In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner are having none of it. In “Reading Law,” they argue forcefully for a textualist approach—for interpreting legal documents, especially the Constitution, by focusing on written words in their original meaning. Along the way, the authors debunk the claims of the non-textualists, who, they say, seek to deconstruct the language, imposing on it a content that was never expressed. Such an effort, they note, defeats the whole purpose of communication and substitutes the reader’s ideas for those of the writer.

Textualism, the authors claim, is inherent in written language itself, which enables writers to convey their ideas with specificity and precision. Thus in Anglo-American jurisprudence, textualism has been the guiding interpretive method for centuries, the bedrock assumption of judges as well as legislators. “Reading Law” offers a panoply of examples from English and American history in which the original meaning of written words has guided decisions over rival claims—from a run-of-the-mill land deed to the Magna Carta and the U.S. Constitution. To trace textualism’s deep roots, the authors describe a Scottish statute, circa 1427, which, as they put it, “made it a punishable offense for counsel to argue anything other than the original understanding.”

Though other approaches have always jostled for supremacy, a full assault on textualism—embodied in such ideas as the “living Constitution”—dates only to the mid-20th century. One of the central claims of the non-textualists is that language is too slippery, and meaning too “relative,” to allow for consensus and clarity. But in fact, the authors say, there is an extraordinary amount of agreement about the intended meaning of most legal texts, even if there is still room for interpretive dispute. It is only in a small minority of politically and socially sensitive cases, they note, that non-textualists allegedly cannot discern the written text’s original meaning.

But of course the real disagreement over the role of texts in law has to do with both method and purpose. The non-textualists—whether judges, lawyers or law professors—are keen, above all, to promote a particular outcome, and the original meaning of a text can get in the way. Non-textualism, by contrast, empowers the reader (or judge) to do as he pleases. Such a freewheeling approach is a problem in nearly any context, but it is especially pernicious in the law, where precision, predictability and legitimacy are so important. In any democracy, and particularly in our constitutional system, non-textualism transfers power from the people to unelected judges.

Not surprisingly, it is in construing the Constitution that non-textualists make their strongest stand. Justice Stephen Breyer, the judiciary’s foremost opponent of the original-meaning approach, is candid enough about his motivations. In his 2010 book, titled “Making Our Democracy Work: A Judge’s View,” Justice Breyer wonders: “Why would people want to live under the ‘dead hand’ of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?” A textualist might answer that, if today’s citizens don’t like what the 18th-century Founders decided upon—and what they put down in a document that was, after all, ratified by democratic vote—they can amend it.

As the authors make their argument for textualism, they are eager to show that it is a good deal more than a dull and primitive literalism. They cite passages from Shakespeare and from case law to reveal, for example, the ways in which “associated words” in a list or grouping point toward certain definitions and eliminate others. Similarly, generalizations in the law (e.g., the phrase “any other person”) may be more precise than an over-literal reading might suggest, depending on the specific nouns that come before or after. Drawing on statutes, amusing hypotheticals and the work of distinguished legal philosophers, the authors present 57 “canons” that should govern text-based legal thinking and judgment. They also expose 13 “falsities”—for example, “the half-truth that consequences of a decision provide the key to sound interpretation.”

Justice Scalia and Mr. Garner have written a remarkable book that reshapes the long-running debate about what it means to be a judge and the very role of the law in our polity. It is also a compelling guide to interpreting legal documents, certain to be used by legal practitioners and scholars. The authors, it should be noted, do not suggest that textualism leads to easy comity among jurists or anyone else. They concede that, even if minds agree on meaning, “hearts often disagree on what is right.” The answer, though, is not for judges to impose their idea of right, and thereby distort the law, but to concentrate on “what an enacted law means,” an effort that requires “discipline and self-abnegation.”

Mr. Rivkin, a constitutional lawyer, served in the Justice Department under Presidents Reagan and George H.W. Bush.

A version of this article appeared August 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Triumph Of the Text.

(Originally published on David Rivkin’s Facebook page, October 29, 2010)

Clarence Thomas leaps from his chair. He retrieves a wire coat hanger from his closet for a demonstration — the same demonstration he gives his law clerks. He bends it and says: “How do you compensate? So, you say well, deal with it. Bend this over here. Oh, wait a minute, bend it a little bit there. And you’re saying that it throws everything out of whack. What do you do?”

He holds up a twisted wire, useless now for its original purpose and the point is made. “If you notice sometimes I will write just to point out that I think that we’ve gone down a track that’s going to cause some distortion, then it’s quite precisely because of that. I don’t do things that I think are illegitimate in other areas, just to bend it back to compensate for what’s already happened.”

Interpreting the Constitution is the Supreme Court’s most important and most difficult task. An even harder question is how to approach a Constitution that, in fact, is no longer in pristine form — with the Framers’ design having been warped over the years by waves of judicial mischief. There is an obvious temptation to redress the imbalance, which Associate Justice Thomas decisively rejects. Thus his coat hanger metaphor.

So is the most controversial Supreme Court justice an “originalist” when it comes to Constitutional interpretation? He says he doesn’t like labels, though he does admit to being a “meat and potatoes” kind of guy.

Upon entering his spacious office overlooking the Capitol Dome in Washington, D.C., the first thing to catch your eye is his Nebraska Cornhuskers screen saver. Mr. Thomas never attended the University of Nebraska, or even lived in the state. He’s just a fan. His office is also decorated with pictures of the historical figures he admires, Frederick Douglass, Abraham Lincoln, Booker T. Washington, Thomas More and Winston Churchill, and he speaks of them with knowledge and passion. Watching over all is a bust of his grandfather atop Mr. Thomas’s bookcase — its countenance as stern as a Roman consul. There is little doubt this man was the driving force in Mr. Thomas’s life — a fact he confirms, and which is reflected in the title of his recently published memoir, “My Grandfather’s Son.”

Mr. Thomas faced one of the most destructive and personally vicious Supreme Court confirmation hearings in American history — described at the time by Mr. Thomas himself as a “high-tech lynching.” Mr. Thomas’s opponents smeared his character and integrity. To this day, disappointed and embittered, they feel entitled to insult his qualifications, intelligence and record.

In 2004, when Mr. Thomas’s name was floated as a possible replacement for ailing Chief Justice William Rehnquist, then Senate Minority Leader Harry Reid called him an “embarrassment” to the Court, and attacked his opinions as “poorly written.”

In point of fact, Mr. Thomas’s opinions are well-written, displaying a distinctive style — a sure sign that the Justice and not his clerks does most of the writing.

As for his judicial philosophy, “I don’t put myself in a category. Maybe I am labeled as an originalist or something, but it’s not my constitution to play around with. Let’s just start with that. We’re citizens. It’s our country, it’s our constitution. I don’t feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it.”

In that process, the first place to look is the document itself. “And when I can’t find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that’s when you drift so much more towards your own policy preferences.”

It is the insertion of those policy preferences into the interpretive process that Mr. Thomas finds particularly illegitimate. “People can say you are an originalist, I just think that we should interpret the Constitution as it’s drafted, not as we would have drafted it.”

Mr. Thomas acknowledges that discerning a two-hundred-year-old document’s meaning is not always easy. Mistakes are possible, if not inevitable, as advocates of a malleable “living constitution,” subject to endless judicial revision, never tire of pointing out. “Of course it’s flawed” agrees Mr. Thomas, “but all interpretive models are flawed.”

Simply following your own preferences is both flawed and illegitimate, he says. “But if that is difficult, does that difficulty legitimate just simply watching your own preference?” By doing that “I haven’t cleared up the problem, I’ve simply trumped it with my personal preferences.”

Mr. Thomas has also been criticized for his supposed lack of respect for precedent. Even his fellow conservative, Justice Antonin Scalia, was reported by a Thomas biographer to have claimed that Mr. Thomas just doesn’t believe in “stare decisis.” Latin for “let the decision stand,” stare decisis is an important aspect of the Anglo-American system of precedent — deciding new cases based on what the courts have done before and leaving long established rules in place.

Mr. Thomas, however, is less absolute here than his critics suggest. He understands the Supreme Court can’t simply erase decades, or even centuries, of precedent — “you can’t do it.”

At the same time, he views precedent with respect, not veneration. “You have people who will just constantly point out stare decisis, stare decisis, stare decisis . . . then it is one big ratchet. It is something that you wrestle with.” History would seem to vindicate Mr. Thomas and his insistence on “getting it right” — even if that does mean questioning precedent.

The perfect example is Brown v. Board of Education (1954), where the Supreme Court overruled the racist “separate but equal” rule of Plessy v. Ferguson (1896), which permitted legally enforced segregation and had been settled precedent for nearly 60 years.

It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the “white race” would continue to be dominant in the United States “in prestige, in achievements, in education, in wealth and in power . . . for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

“But,” Harlan continued, “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens.”

That, for Mr. Thomas, is the “great ‘But,'” where Harlan’s intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.

More than anything else, this explains Mr. Thomas’s own understanding of his job — a determination to put “a firewall between my personal view and the way that I interpret the Constitution,” and to vindicate his oath “that I will administer justice without respect to person, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as an Associate Justice of the Supreme Court of the United States.”

This insistence by the Justice on judging based upon the law, and not on who the parties are, presents a stark contrast with today’s liberal orthodoxy. The liberal approach — which confuses law-driven judging with compassion-driven politics, enthused with a heavy distrust of the American political system’s fairness — was recently articulated by Democratic presidential candidate Barack Obama, who emphasized the need for judges with “heart” and “empathy” for the less fortunate, judges willing to favor the disempowered.

Born in rural Georgia in 1948, Mr. Thomas and his brother were mostly raised in Savannah by their maternal grandparents. His grandfather, Myers Anderson, believed in work, and that rights come with responsibilities. According to his book, Mr. Anderson told the seven-year-old Clarence that “the damn vacation is over” the morning he moved in.

Says Mr. Thomas: “Being willing to accept responsibility, that sort of dark side of freedom, first — before you accept all the benefits. Being ready to be responsible for yourself — you want to be independent. That was my grandfather.” Anderson also taught his grandson to arrive at his conclusions honestly and not “to be bullied away from opinions that I think are legitimate. You know, not being unreasonable, but not being bullied away.”

For a man who has been subjected to a great deal of vitriol, Mr. Thomas manifests remarkable serenity. He rejoices in life outside the Court, regaling us with stories about his travels throughout the U.S., his many encounters with ordinary Americans, and his love of sports — especially the Cornhuskers, the Dallas Cowboys and Nascar.

Mr. Thomas isn’t much bothered by his critics. “I can’t answer the cynics and the negative people. I can’t answer them because they can always be cynical about something.”

Mr. Thomas speaks movingly about the Court as an institution, and about his colleagues, both past and present. He sees them all, despite their differences, as honorable, each possessing a distinctive voice, and trying to do right as they see it. Our job, he concludes, is “to do it right. It’s no more than that. We can talk about methodology. It’s merely a methodology. It’s not a religion. It is in the approach to doing the job right. And at bottom what it comes to, is to choose to interpret this document as carefully and as accurately and as legitimately as I can, versus inflicting my personal opinion or imposing my personal opinion on the rest of the country.”

And why doesn’t he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court’s early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. “This is my 17th term and I haven’t found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn’t Perry Mason.”